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CFA_Judgement_Corpus_97-22

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{ "en": "As for the jury, they did not reach a verdict the day they retired. They retired at 11:34 am on 16 December 2016 (Friday) and stopped at 8:03 pm the same day; they resumed deliberation at 9:38 am on 17 December (Saturday) and returned a guilty verdict against the applicant at 12:19 pm the same day. The guilty verdict was by a majority of five to two.", "zh-HK": "12年作為量刑的起點實屬過高；" }

{ "en": "Ground of appeal", "zh-HK": "法官採納8年為起點時已將本案的背景和特殊情況列入考慮之內，所以沒有其他特殊理由，可以使他把起點增加至12年。而且法官將起點遞增兩次，因此犯了雙重增加量刑起點的錯誤。" }

{ "en": "9.Mr Ng, who acted for the applicant in the trial, only put forward one ground of appeal which reads:", "zh-HK": "法官不是按申請人所承認的兩項控罪量刑，而是按他被控的罪名數目量刑，因此法官犯錯。" }

{ "en": "“The applicant seeking leave to appeal was found guilty of one charge of trafficking in dangerous drugs by the jury who reached a majority verdict of five to two. The jury took a long time to deliberate. The trial judge did not enquire of the jury at an appropriate time as to any prospect of their reaching any verdict, nor did he remind them to inform the judge if they failed to reach a verdict. In all the circumstances, the trial judge did not exercise his discretion appropriately to inform the jury of the time control of the court and that they were not to deliberate indefinitely until a verdict was returned. There was a real risk that the conviction was reached by the jury being put under pressure of time.", "zh-HK": "法官認為受害人的年齡是13歲而她的真實年齡是14歲半，法官採納12年為刑期起點是受他錯誤認為受害人的年齡是13歲所影響。" }

{ "en": "10.Mr Ng contended that in this case, the evidence took a total of eight and a half hours, and the prosecution and defence’s closing submissions and the trial judge’s summing-up another three hours. Minus the time for meals and rest at night, the jury still spent about ten hours in deliberating their verdict and finally only brought in a barely sufficient result of five to two. Therefore, they must have encountered difficulties in the course of their discussions. Nevertheless, the trial judge did not provide them with prompt and/or appropriate assistance or guidance.", "zh-HK": "代表申請人的王大律陳詞稱香港法庭就強姦案的判刑一向以來都是跟隨女皇訴比林（1）（譯音）一案的指引。王律師引用多個案例支持他的說法。指出跟據比林案例就強姦案一般刑期起點的指引，以本案情況而言，12年的刑期起點實在是太高。" }

{ "en": "11.For instance, as Lord Lane CJ said in R v Rose [1982] 1 WLR 614, 620 (which the Court of Appeal of the United Kingdom quoted in R v Payne [2001] EWCA Crim 274), depending on the circumstances of the case and the time spent in discussions, the judge should re-assemble the court in due course to make enquiry of the jury as to whether there is any chance of their reaching an agreement in considering whether it is necessary to discharge the jury or to ask them to continue with their discussions on the case. Nevertheless, the trial judge in the present case did not do so.", "zh-HK": "王律師引用的判例有女皇訴張銘廉（2）（譯音）、女皇訴廖炳堅（3）（譯音）和香港特別行政區訴王光益（4）（譯音）等案。" }

{ "en": "12.The Court of Appeal in the United Kingdom expressed the view in Payne that without making the aforesaid enquiry, the jury might have mistakenly thought that they were left to discuss the case indefinitely and felt under pressure which they ought not to have. Also, in the opinion of Mr Ng, this was more than likely to have happened in the present case.", "zh-HK": "本庭認為即使根據比林一案所定出的刑期指引，本案的情況當中，亦有許多可以加重刑罰的因素。該案定出如果無加重刑罰因素存在，一般強姦案的刑期是5年。如果犯案者對受害人負有責任的話，例如是受害人的監護人，起點是8年。如果有其他的因素，例如在強姦過程中使用暴力對待受害人，或多次重覆強姦受害人；或強姦是經過週詳計劃才實行；或受害人年幼或是年紀很大的；刑期的起點應該是高於8年。" }

{ "en": "13.Mr Ng further contended that the Court of Appeal in the United Kingdom pointed out in R v Court [1995] Crim LR 310 that as a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures. This principle applies when the jury’s verdict is pending and the judge should intervene in due course.", "zh-HK": "本庭要指出王大律師引用的張銘廉一案，並無裁定比林一案的刑期指引，是法庭判罰強姦犯時，必須遵從的指引。麥道高法官於該案只認為比林所定出的強姦刑期指引是可以幫助香港法庭决定如何就強姦案量刑。廖炳堅一案亦是王大律師引用案例之一。上訴庭在該案認為在未有其他因素証明比林一案的指引有需要改變，比林一案設立的強姦罪的一般刑期起點仍然需要維持。王光益一案則沒有討論一般強姦罪的刑期是否應該繼續跟隨比林一案所定下的。王光益一案的裁决是以該案的情況，3年半的刑期是明顯的過低，而適當的刑期應為5年。" }

{ "en": "14.Taking Lincoln De Four v The State [1999] 1 WLR 1731 (PC) as another example, Mr Ng contended that the jury should be explicitly told that in the event of an irreconcilable disagreement over the case, it was their duty to inform the court of it .", "zh-HK": "本庭於4月7日裁决的律政司司長訴沙曼打星（5）（譯音）一案中，就比林一案的刑期指引，亦有評述。本庭提出雖然比林一案可以提供一些幫助，但該案指引建議的5年起點，不一定適用於香港。在某些個案的特殊情況下，法庭會認為一個較高的刑期起點是適當的量刑。因此，本庭認為彭法官在量刑時是不須要跟隨比林一案所定下的刑期指引。" }

{ "en": "15.Finally, by citing a case of the Court of Appeal of Hong Kong R v Tam Chi Pang [1986] HKLR 1122, Mr Ng contended that the long period of retirement of the jury is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a time when this by itself may be sufficient.", "zh-HK": "本庭認為在量刑時有兩點事實可能引致原審法官錯誤地把刑期起點增至12年。第一點是原審法官，可能錯誤認為申請人雖然承認兩項強姦罪名，但事實上曾多次同樣侵犯受害人。因此，以此為他增加刑罰的考慮。第二點是原審法官可能受他認為受害人的年齡是13歲而不是14歲半的影響，以此為增加刑罰的基礎。因此，可能導致原審法官，由8年增加至12年。本庭認為受害人的年齡對刑罰之輕重有直接的影響，如果受害人是13歲，刑期必然是較受害人是14歲半重。" }

{ "en": "16.To conclude, Mr Ng submitted that the indifference of the trial judge in the present case left the jury, who were not able to return a valid verdict after long deliberations, unsure of what to do, rendering their verdict of five to two, which was not reached until the following day, unsafe and unsatisfactory.", "zh-HK": "以本案的情況整體而言，本庭認為12年的起點是明顯的過重，而適當的刑期應為10年，在達至該結論，本庭亦有考慮沙曼打星一案的刑期。考慮到申請人認罪，因此，可獲得三分一的減刑，所以本庭認為申請人應服的刑期是6年8個月。基於以上原因，本庭批准上訴許可申請。以本申請作為上訴的聆訊接納上訴，將刑期由8年減為6年8個月。" }

{ "en": "Discussion", "zh-HK": "答辯人：由羅君偉署理副首席政府律師代表" }

{ "en": "17.The authorities cited by Mr Ng are of no material assistance to the applicant.", "zh-HK": "上訴許可申請人：由法律援助署委派王熙曜大律師代表" }

{ "en": "Hon Cheung JA (giving judgment of the Court):", "zh-HK": "上訴法庭法官張澤祐頒發上訴法庭判案書：" }

{ "en": "The applicant was charged with five counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 445) (the Ordinance). After trial before District Judge Yiu, the applicant was convicted as charged and sentenced to 4 years’ imprisonment. The applicant seeks leave to appeal the convictions.", "zh-HK": "申請人被控五項「處理已知道或相信為代表從可公訴罪行的得益的財產」罪，違反《有組織及嚴重罪行條例》(《條例》)(香港法例第 455 章)第 25(1) 及 (3) 條。案件經區域法院法官姚勳智審理後，申請人被裁定罪名成立及被判四年監禁。申請人就定罪提出上訴許可申請。" }

{ "en": "Charges", "zh-HK": "控罪" }

{ "en": "The particulars of Charge 1 were that between a day unknown and 31 March 2005, the applicant dealt with a total sum of HK$28,000,000.00 in Hong Kong. The particulars of the other four charges were that the applicant dealt with the following property in Hong Kong:", "zh-HK": "第一項控罪的詳情指申請人於某日至 2005 年 3 月 31 日在香港處理HK$28,000,000.00的款項。另外四項控罪詳情指申請人處理以下的財產:" }

{ "en": "1)\tCharge 2: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$80,186,458.51 in her savings account with Hang Seng Bank. [123 deposits totalling HK$41,955,881.21 and 84 withdrawals totalling HK$38,230,577.30.]", "zh-HK": "第二項控罪：2001 年 1 月 8 日至 2005 年 2 月 21 日處理其「恒生銀行」儲蓄戶口共 HK$80,186,458.51。[123 次存款共HK$41,955,881.21及 84 次提款共HK$38,230,577.30。]" }

{ "en": "第三項控罪：2001 年 1 月 8 日至 2005 年 2 月 21 日處理其「恒生銀行」支票戶口共HK$17,036,645.92。[27 次存款共HK$8,595,828.00 及 19 次提款共HK$8,440,817.92。]\t2)\tCharge 3: Between 8 January 2001 and 21 February 2005, the applicant dealt with a total sum of HK$17,036,645.92 in her current account with Hang Seng Bank. [27 deposits totalling HK$8,595,828.00 and 19 withdrawals totalling HK$8,440,817.92.]", "zh-HK": "2)" }

{ "en": "第四項控罪：申請人在 2003 年 4 月 9 日至 2004 年 11 月 8 日期間處理其「渣打銀行」戶口共HK$750,000.00。\t3)\tCharge 4: Between 9 April 2003 and 8 November 2004, the applicant dealt with a total of HK$750,000.00 in her account with the Standard Chartered Bank.", "zh-HK": "3)" }

{ "en": "第五項控罪：申請人在 2004 年 6 月 23 日至 2004 年 9 月期間處理其「中國銀行」戶口共RMB¥349,900.00。\t4)\tCharge 5: Between 23 June and September 2004, the applicant dealt with a total of RMB¥349,900.00 in her account with the Bank of China.", "zh-HK": "4)" }

{ "en": "Facts", "zh-HK": "案情" }

{ "en": "As the facts of the case revealed, in March 2005 the police broke open and entered the applicant’s residence and found three keys in a jewellery box: two being keys to safe deposit boxes at Hang Seng Bank and the third one being the key to a safe inside the applicant’s residence (“safe-key”). The police opened the safe with the safe-key and found cash in the amount of HK$11,000,000.00 inside. Also found from this safe were two keys, being keys to the safe deposit boxes of the Bank of America and Hang Seng Bank respectively. These two safe deposit boxes belonged to the applicant’s cohabitee Mr Chan Thao Phoumy. The police opened these two safe deposit boxes with the two keys and found therefrom cash in the sums of HK$9,800,000.00 and HK$7,200,000.00 respectively. These three sums of money constituted the money referred to in Charge 1.", "zh-HK": "案情顯示警方於 2005 年 3 月破門進入申請人的居所，在一個手飾箱內發現三條鎖匙：兩條為「恒生銀行」保險箱鎖匙，另外一條為申請人居所夾萬的鎖匙(‘夾萬鎖匙’)。警員用夾萬鎖匙打開有關夾萬，發現內有 HK$11,000,000.00 現金。另外，在夾萬內發現兩條分別是「美國銀行」及「恒生銀行」保險箱的鎖匙。這兩個保險箱是屬於申請人同居男友陳森(Chan Thao Phoumy)。警員用該兩條鎖匙開這兩個保險箱，在內分別發現 HK$9,800,000.00 及 HK$7,200,000.00 的現金。這三筆款項構成第一項控罪所指的款項。" }

{ "en": "According to the agreed facts, the applicant and Chan Thao have a daughter. The applicant purchased the following 11 properties in Hong Kong between 2001 and 2005:", "zh-HK": "同意案情顯示申請人與陳森育有一名女兒。申請人於2001 年至 2005 年間在香港購買以下十一個物業：" }

{ "en": "2001 年 10 月申請人購買位於九龍又一村的居所，價值約 HK$4,000,000。\t(1)\tIn October 2001, the applicant purchased the residence in Yau Yat Chuen, valued at about HK$4,000,000.", "zh-HK": "(1)" }

{ "en": "2004 年申請人購買君逸山的兩個單位價值分別為約HK$3,000,000。\t(2)\tIn 2004, the applicant purchased two units of Carmel-on-the-Hill, each valued at about HK$3,000,000.", "zh-HK": "(2)" }

{ "en": "2004 年 10 月期間申請人一次同時購買八個位於九龍深盛道「碧海藍天」的單位，價值約 HK$29,000,000。\t(3)\tIn October 2004, the applicant purchased eight units of AquaMarine situated in Sham Shing Road, Kowloon in one go, the total value of which was about HK$29,000,000.", "zh-HK": "(3)" }

{ "en": "The applicant’s defence", "zh-HK": "申請人的答辯" }

{ "en": "5.\tThe applicant did not dispute the fact that cash in the sum of HK$11,000,000 was found from her safe, but alleged that she did not know what were inside Chan Thao’s safe deposit boxes. She admitted that her safe could only be opened by using both the key and a combination, and that only she knew the combination and Chan Thao did not. The two safe deposit boxes in Chan Thao’s name could only be used by him, and he had not authorised anyone to use them on his behalf.", "zh-HK": "申請人不爭議在她的夾萬中搜出 HK$11,000,000 現金，但她指不知道陳森保險箱內放有甚麼東西。申請人承認她的夾萬是要一併用鎖匙及密碼來開啟的，只有她才知道密碼，陳森是不知道的。陳森名下的兩個保險箱只有他才能使用，他沒有委任其他人士代理使用。" }

{ "en": "6.\tThe applicant elected to give evidence. Judge Yiu recounted her evidence as follows:", "zh-HK": "申請人選擇作供。姚法官敘述她的證供如下：" }

{ "en": "被告選擇作供，她詳細地講述她的收入來源，主要包括過去 20 多年來從事按摩及提供性服務得來的積蓄，共20,000,000餘元現金，以及經黃靜俊投資內地房地產的得益，她亦呈上Dl 及D2文件夾的文件以作支持。此外，她亦表明不知道陳森保險箱中有那些大量的現金。\t“14.\tThe defendant elected to give evidence. She described in detail the sources of her income, which mainly included the savings she obtained by providing massage and sex services over the past 20 years or so, totalling $20,000,000 odd in cash, and the proceeds of real estate investment on the Mainland through Huang Jingjun. She also produced the documents in bundles D1 and D2 to support what she said. Moreover, she stated clearly that she had no idea of the existence of those large amounts of cash in Chan Thao’s safe deposit boxes.", "zh-HK": "「14." }

{ "en": "被告現年48歲，並無任何刑事定罪紀錄。她與陳森是同居男女關係，雙方育有一女兒，現年12歲。被告講述於1982年來港後，當時曾任職售貨員，至1983年起經同事介紹下，在旺角從事按摩行業，與公司拆賬。後來再經公關介紹下，自行直接向不同客人提供按摩及性服務，收入因此增加。1983年起，她每月可賺30,000餘元。客人也有餽贈禮物如手錶、金飾、金器予她，她也有將物品變賣，取回金錢。她在D1第1、2頁中自行列出從1983年至2003年因提供按摩及性服務經扣減所有開支後，她所能儲存下來的金額。她也指自己消費不多，因此能儲存下大量現金，如她所指稱，1983至1990年她已能儲存下共6,000,000餘元，1991至1997年共儲存14,000,000餘元，1998至2003年亦儲存2,600,000餘元，總計從1983至2003年，被告合共儲存現金為23,000,000餘元。她也講述在1995至1996年間經濟環境好，她更可每月儲存20多萬元，後來到1998年女兒出生，入息才少了，她也會選擇客人來作服務等等。\t15.\tThe defendant is now aged 48 and has a clear record. She and Chan Thao are cohabitees, and they have a 12-year-old daughter. The defendant said that she came to Hong Kong in 1982 and worked as a salesgirl. In 1983, upon referral by colleagues, she engaged in the provision of massage service in Mongkok, sharing profits with the company which engaged her. Subsequently, through further introduction of hostesses, she directly provided massage and sex services to customers, thereby generating more income. Since 1983, she has been able to earn $30,000 odd per month. She also received from customers gifts such as watches, golden jewellery and golden ornaments, which she then sold in exchange for money. Pages 1 and 2 in D1 show a list that she has prepared, setting out the amounts of savings that she had been able to make, after deducting all expenses, by providing massage and sex services between 1983 and 2003. She also said that she did not spend much and was therefore able to save up a lot of cash. As she has said, she managed to save up $6,000,000 odd in total between 1983 and 1990, $14,000,000 odd in total between 1991 and 1997, and also $2,600,000 odd between 1998 and 2003, making a total saving of $23,000,000 odd in cash between 1983 and 2003. She also said that when the economy was good in 1995 and 1996, she could even save up $200,000 odd per month. It was only after the subsequent birth of her daughter in 1998 that her income decreased, and she also picked and chose customers, and so on.", "zh-HK": "15." }

{ "en": "\t除上述收益外，她講述自1995年開始，亦經友人黃靜俊開始投資內地房地產，她指黃靜俊在內地認識大地產商，可內部認購單位。至於陳森，原本是她按摩的客人，約在1993年起左右發展為親密關係。他也有與黃靜俊一起投資內地房地產生意，陳森也有做紅酒及法國時裝生意等等。\t16.\tApart from the above earnings, she also said that in 1995, she started to invest in Mainland real estate through her friend Huang Jingjun. She said that Huang knew major property developers on the Mainland and could acquire properties through internal presales. Chan Thao was initially her massage customer and they had developed an intimate relationship since around 1993. He also invested, together with Huang, in Mainland real estate. Chan also engaged in businesses such as red wine and French fashion.", "zh-HK": "16." }

{ "en": "被告講述在她夾萬中搜獲的現金11,000,000餘元，她指就是因提供性服務以及內地投資房地產所賺回來的，並非任何犯罪得益。她不想放在銀行，才放在家中。她多年來沒有報稅，因為她認為這些客人的打賞應不用報稅，內地房地產的收入亦毋須在港報稅等。至於夾萬中發現兩條陳森的保險箱鎖匙，她說並不知情，更不知道陳森的保險箱內有甚麼，但這夾萬則只有她自己知道密碼，陳森並不知道。\t17.\tThe defendant said that the cash of $11,000,000 odd found in her safe was money earned by providing sex services and from investments in Mainland real estate and was not proceeds of any crime. She kept the money at home because she did not want to put it in banks. Throughout all these years, she had never filed any tax return because she thought that the money was tips awarded by customers and should therefore not be taxable, and that the earnings from Mainland real estate were also not taxable in Hong Kong. As to the other items found from her safe, namely two keys to Chan Thao’s safe deposit boxes, she said that she knew nothing about it and she had no idea what was inside Chan Thao’s safe deposit boxes, but only she knew the combination of this safe and Chan Tao did not.", "zh-HK": "17." }

{ "en": "就內地房地產的投資，她提供D1第3至73頁的文件顯示內地天河體育西路以及上海西郊的物業買賣文件，當中顯示陳森為買方。至於D1第74頁，則是黃靜俊曾提供的銀行戶口文件，黃曾著被告可入數到此戶口，她也相信黃是正當商人。除此之外，被告知道黃靜俊的生意拍檔包括梁美娟，該梁美娟擁有物業及是公司董事(D1第76至106頁)。據黃靜俊所述，梁美娟的姊妹是梁紫娟，該梁紫娟也曾被黃靜俊指示存款到被告人的戶口中（D1第107至112頁)。\t18.\tIn respect of the investments in Mainland real estate, she has set out in pages 3 to 73 in D1 the sale and purchase documents relating to real properties in Tiyu West Road in Tianhe District and in the countryside to the west of Shanghai. Those documents showed that the purchaser was Chan Thao. Page 74 in D1 is a document relating to a bank account provided by Huang Jingjun. Huang had told the defendant that money could be deposited into this account and she believed that Huang was a legitimate businessman. Apart from this, the defendant knew that one of the business partners of Huang was Leung May Qu, who was a property owner and a company director (pages 76 to 106 in D1). According to Huang, Leung May Qu’s sister was Leung Chi Kun, who had also been instructed by Huang to deposit money into the defendant’s accounts (pages 107 to 112 in D1).", "zh-HK": "18." }

{ "en": "就有關內地房地產的投資模式，被告指出她也按黃靜俊的指示，把各客人的投資集合到她的銀行戶口，然後也會轉到黃靜俊指定的戶口中。她也相信這些是正當的金錢，因為黃靜俊是正當的生意人。\t19.\tIn relation to the mode of investing in Mainland real estate, the defendant said that she had, also acting on Huang Jingjun’s instructions, gathered customers’ investments to her bank account and then transferred the money to bank accounts designated by Huang. She also believed that the money was legitimate because Huang was a legitimate businessman.", "zh-HK": "19." }

{ "en": "就第二項控罪相關的恒生銀行儲蓄戶口之各項入賬及支賬，她在D1文件第113至119頁中詳列各項收支賬的源由，包括「服務費」為按摩及性服務的現金存款，「客人投資」則指黃靜俊指示客人存入她的戶口中作內地投資，「收回投資回報」則指黃靜俊內地投資有盈利而存到她的戶口中，但有部分她也會按指示，轉賬這些回報到其他客人或黃靜俊其他的生意夥伴戶口內，以作生意的對數。被告指這些模式黃靜俊指可減省他把金錢來回轉賬的次數及手續。被告相信黃靜俊是正當生意人，因此也按指示處理。此外，這些收支的轉賬中亦包括其他開支，如收到朋友以往借貸的還款、兌換美元用作賀禮、其他戶口定期到期的轉賬、陳森還款的金額等等，但也有先代黃靜俊先支出予客人，然後由客人再存入戶口作償還等。此外，被告也把客人出資投資內地房地產所存入及支出的款項列出(見Dl第119(a)至(f)頁)，累計分別約為各2,300,000餘元。\t20.\tAs to the credits and debits of the Hang Seng Bank savings account to which Charge 2 related, she set out in pages 113 to 119 in D1 the source of the each credit and debit in detail, including that ‘service money’ referred to cash deposits of money earned by providing massage and sex services, ‘customers’ investment’ referred to the deposits made by customers into her account upon Huang’s instructions for Mainland investment purposes, and ‘investment return received’ referred to the profits earned from Huang’s Mainland investment and deposited into her account. However, upon being instructed to do so, she transferred some of these returns to the accounts of other customers or Huang’s other business partners for business set-off purposes. The defendant said that according to Huang, such arrangement could reduce the number of transfers of monies and simplify the formalities. The defendant believed that Huang was a legitimate businessman and therefore followed his instructions. Furthermore, these credit and debit transfers also covered other expenses, such as receipts of repayments from friends who had borrowed money previously, money converted into US dollars for use as gifts, transfers made upon maturity of other time deposits, repayments made by Chan Thao, and so on. There were also monies paid on behalf of Huang to customers who then made repayments by depositing monies into the account. In addition, the defendant also listed the payments-in and payments-out in respect of customers’ contributions to the Mainland real estate investments (see page 119(a) to (f) in D1), each of which added up to $2,300,000 odd.", "zh-HK": "20." }

{ "en": "至於第三項控罪相關的恒生銀行支票戶口的收支賬，她也在Dl 120至121頁中列出，部分由儲蓄戶口轉至此戶口，也有客人投資內地房地產的存入金額，部分支出也作為買賣物業的支出。\t21.\tAs to Charge 3, she also set out in pages 120 to 121 in D1 the credits and debits of the Hang Seng Bank current account. Some of the credit entries were transfers from the savings account and deposits made in respect of customers’ Mainland real estate investments, whereas some of the debits were for expenses related to sales and purchases of real properties.", "zh-HK": "21." }

{ "en": "就第四項控罪相關的渣打銀行戶口，她列出6項共750,000元的現金存款，是她在夾萬內取出現金而存入，該戶口亦用以支付按揭物業的轉賬支出(D1第112至143頁)。\t22.\tAs to the Standard Chartered Bank account in relation to Charge 4, she has listed six cash deposits in the total sum of $750,000, which was cash that she had taken out from the safe. This account was also used for repaying mortgage loan by transfer (pages 112 to 143 in D1).", "zh-HK": "22." }

{ "en": "就第五項控罪相關的中國銀行戶口共8項逾350,000元的存款，她指出是約在1995至2004年間，其姊姊從內地來港旅遊時，被告以她的港元兌換姊姊的人民幣而來，她一直保存至約2004年左右，因銀行開始接受人民幣存款才開戶，若每次存款少於50,000 元毋須手續費，她才分8次、每次少於50,000元而存入(D1第144至147頁)，而147頁中2005年12月的300,000餘元的存款，則只是定期到期連利息的存入，這些據她所說根本並非犯罪得益。\t23.\tAs to the eight deposits totalling over $350,000 into the Bank of China account in relation to Charge 5, she said that the money was obtained by exchanging her Hong Kong currency with her sister’s Renminbi when her sister travelled to Hong Kong on various occasions from 1995 to 2004. She had kept the money until 2004 or so when banks began to accept deposits in Renminbi, and only then did she open a Renminbi account. As no service fee was charged for deposits of less than ¥50,000, she put the money into the account by making eight separate deposits of less than ¥50,000 each (pages 144 to 147 in D1). For the deposit of ¥300,000 odd made in December 2005 (listed on page 147), it was a deposit of principal with interest of a time deposit upon its maturity. According to her, it had nothing to do with proceeds of crime.", "zh-HK": "23." }

{ "en": "就陳森的生意狀況，被告呈上D2文件夾以支持陳是正常的生意人，包括陳森(即Chan Thao Phoumy) 在1993年是東溢貿易公司(Oriental Profit Trading) 的大股東，賴國雅是其夥伴(D2 第 1 至 19 頁，第15頁為佔股股份份數)，D2第22至57頁則是陳森從法國入口時裝的文件。而陳森的東溢貿易亦與賴國雅有份的顯潤發展有限公司(Bacada Development Limited)合作，協議書見D2第58至59頁。D2 第62至131頁為該顯潤有限公司的生產及交易文件。據被告所了解，陳森亦透過顯潤入口時裝往內地銷售。此外，陳森亦有入口法國紅酒做生意(D2第132至161頁)，陳森也是創立貿易有限公司的董事(D2第162至173頁)，而第174至180頁則是陳森從該創立退股，其他夥伴須還款予陳森的協議書。除此以外，陳森亦是毅瑩吸塑製品公司的合夥人(D2第182至187頁)，D2第188至191頁是陳森各公司的卡片。按上述所有文件及據被告所知，她也相信陳森是正當的生意人。\t24.\tIn respect of Chan Thao’s business, the defendant submitted bundle D2 to support the contention that Chan was a legitimate businessman, including that in 1993, Chan Thao (i.e. Chan Thao Phoumy) was the major shareholder of one Oriental Profit Trading Limited with Andy Lai being his partner (pages 1 to 19 in D2; page 15 shows the respective shareholdings of the shareholders), and pages 22 to 57 in D2 are documents showing that Chan imported fashions from France. Chan’s Oriental Profit also cooperated with one Bacada Development Limited in which Andy Lai played a part, and pages 58 to 59 in D2 show the cooperation agreement. Pages 62 to 131 in D2 are the production and transaction documents of Bacada Development Limited. As the defendant understood it, Chan also imported fashions through Bacada for sale on the Mainland. Moreover, Chan traded in imported French red wine (pages 132 to 161 in D2) and was a director of one Trenlux Trading Limited (pages 162 to 173), and pages 174 to 180 show the agreement by which he withdrew from Trenlux as shareholder and by which his other partners had to repay him. Furthermore, Chan was a partner of one Sharp Blister Manufacturing Company (pages 182 to 187 in D2), and pages 188 to 191 in D2 show Chan’s business cards in various companies. In light of all the above documents and based on her own knowledge, the defendant also believed Chan Thoa was a legitimate businessman.", "zh-HK": "24." }

{ "en": "被盤問下，就提供性服務的收入，她指出列出的已是儲蓄，已扣除各項生活費。她同意至1990年時，她已有現金儲蓄6,000,000餘元，她只放在床下，至1995年左右才購買夾萬。她不存放於銀行，因擔心銀行的月結單寄來時信件若被偷取，別人便得知她有這些積蓄，但她卻不擔心被盜竊，放在家中她不覺得危險。至1997年時，被告承認已有現金逾20,000,000餘元，但她不喜歡存入銀行，後來雖是已有保險箱，但她指保險箱太細小，不足以擺放。她更指在2002年搬家時，唯有把所有現金從夾萬放進手拉行李箱中，自行乘的士運送。\t25.\tIn respect of the income she earned by providing sex service, she said under cross-examination that the amounts she had listed were her net savings with various living expenses deducted already. She agreed that as in 1990 she had already got cash savings in the amount of $6,000,000 odd. She just kept the money under her bed and only in 1995 or so did she buy a safe. She did not keep the money in banks because she worried that others would come to know she had such savings if the monthly bank statements were stolen when being mailed to her. However, she did not worry about theft and did not find it dangerous to keep the money at home. The defendant admitted that by 1997 she had already had over $20,000,000 in cash, but she would not like to put money into banks. Although safe deposit boxes were available subsequently, she said that the boxes were too small for keeping the money. She even said that when she moved her residence in 2002, for want of an alternative, she moved all the cash from the safe into a suitcase, which she then carried to her new place of residence by taking a taxi.", "zh-HK": "25." }

{ "en": "此外，她也承認這些是辛苦賺來的金錢，提供性服務後期，每次約有3,000 至5,000元不等。她更直接被問及至2000年時已有逾千萬元現金，為何仍須繼續從事性交易，被告回應謂『留住啲客繼續做，唔通有錢唔搵咩』。\t26.\tIn addition, she admitted that the money was hard-earned and that, at a later stage, each time she provided sex service she could receive $3,000 to $5,000 in return. When she was directly asked why she continued to engage in sex transactions when she already had over $10,000,000 in cash in 2000, the defendant replied, “Retain the customers and continue to do it. We wouldn’t let go any chance to make money, would we?”", "zh-HK": "26." }

{ "en": "被告亦被問及為何不把現金存放於銀行做定期存款生息等等，她說曾做小量金額的定期也只是因應銀行職員推銷，她才存放。至於在D1第119頁中，2005年1月21日存入的現金15,000,000元，她指是因應銀行經理要求存入，才可予批核按揭。她當天自己從夾萬取出金錢存入，她只約了陳森在銀行等她到銀行。被告亦被問及提存中亦有很多現金大額的提款，為何卻不使用支票，被告雖同意支票形式是較安全、方便，省時於數銀紙的方法，但她說她有時間，亦喜歡這樣做。至於從姊姊兌換而來的人民幣，她同意存放已逾10年，但她也有往返內地使用。\t27.\tWhen being asked why she did not, for example, put the cash in the bank as time deposit to earn interest, she said that she had had a little money kept as time deposit, but this was merely because the bank staff persuaded her to do so. As to the deposit of $15,000,000 in cash on 21 January 2005 as shown on page 119 in D1, she said that the money was deposited upon request by the bank manager for the purpose of obtaining approval of mortgage loan. On that day, she herself took the money out of the safe for the purpose of making the deposit, and only asked Chan Thao to wait for her at the bank. The defendant was also asked why she did not use cheques when withdrawals in large amounts were involved, although the defendant agreed that using cheques was safer, more convenient and less time-consuming than counting banknotes, she said she had time and also liked to count banknotes. As to the Renminbi obtained from the exchange with her sister, she agreed that the money had been kept for over 10 years although she also used the money when she visited the Mainland.", "zh-HK": "27." }

{ "en": "有關內地房地產的投資，被告同意她投資時，並不知道黃靜俊已投資多少，她也不認識部分存款入賬 戶的人，但她說曾看過黃的合同文件，亦相信黃。至於梁美娟有否真的做生意，她確實並不知悉，她也不認識梁美娟。被告更進一步指黃靜俊指示她，黃會與客戶對數而存款進被告的戶口中，被告收妥後，她也會以電話通知黃收到款項，這些數目全由黃靜俊計算，但她相信他，並會按指示而行。\t28.\tIn respect of the investments in Mainland real estate, the defendant agreed that when she made the investments, she had no idea how much Huang Jingjun had invested, and she did not know some of the people who deposited money into the account, but she said she had seen Huang’s contract documents and believed him. As to whether Leung May Qu had indeed done any business, she said she really did not know, nor did she know Leung May Qu. The defendant further said that Huang Jingjun had instructed her that he would set off with customers and monies would be deposited into the defendant’s account, and she called to inform Huang whenever she received the money. The sums were all calculated by Huang, but she trusted him and acted as per his instructions.", "zh-HK": "28." }

{ "en": "至於陳森的生意，她知道高小姐是他公司的職員，被告也曾到過他的公司。文件中如D2第64、68頁等亦有陳森的字跡，但至於毅瑩吸塑其後有否做生意被告並不知悉。」\t29.\tAs to Chan Thao’s business, she knew that Miss Ko (transliteration) was a staff member of his company and the defendant had been to his company. Documents such as those shown on pages 64 and 68 in D2 also bear Chan Thao’s handwriting. However, the defendant did not know whether Sharp Blister carried out any business subsequently.”", "zh-HK": "29." }

{ "en": "Grounds of appeal", "zh-HK": "上訴理由" }

{ "en": "7.\tThe applicant contends that the convictions are neither safe nor satisfactory, advancing six grounds of appeal which revolve around the following three main points:", "zh-HK": "申請人就定罪不安全也不穩妥之說提交六項上訴理由。它們可以歸納為以下三點：" }

{ "en": "(1)\tThe prosecution failed to provide sufficient evidence on mens rea, namely there was “reasonable ground to believe” that the property in question represented the proceeds of an indictable offence (the first ground of appeal);", "zh-HK": "控方未能提供充分有關犯罪意圖，即有「合理理由相信」有關財產是代表從可公訴罪行的得益的證據(第一項上訴理由);" }

{ "en": "(2)\tJudge Yiu improperly rejected the defence evidence. In the absence of any valid rebuttal by the prosecution of the defence evidence, the Judge improperly rejected evidence which suggested that the property might not have been obtained illegally (the second, third, fourth and fifth grounds of appeal); and", "zh-HK": "姚法官不當地拒納辯方證據。在控方未能有效反駁辯方證據情況下，不當地拒絕接納辯方證據指有可能這些財產不是非法所得(第二、三、四及五項上訴理由)；及" }

{ "en": "(3)\tThere is a lurking doubt in the case. The prosecution evidence as a whole was weak and deficient. The defendant is a woman from the Mainland who had been working hard in immoral (not illegal) business for 20 years. To convict her of “money laundering” because she had been able to save up a relatively large amount of money and because of the way in which she managed her personal finance, would create a lurking real risk of the verdict being erroneous, thereby rendering the convictions unsafe and unsatisfactory. The court should accordingly exercise its discretion and quash the convictions (the sixth ground of appeal).", "zh-HK": "案件存有「潛伏疑點」(Lurking Doubt)。控方整體證據薄弱和存在缺失。一個來自內地的女子，二十年來從不道德(不是非法)的途徑，辛勤積蓄較多的錢，以及個人理財的習慣而被裁定「洗黑錢」罪成，這潛伏著實質危險的誤判，令定罪不安全、不穩妥，法庭應行使酌情權、推翻定罪(第六項上訴理由)。" }

{ "en": "Essential elements of the offence", "zh-HK": "控罪要素" }

{ "en": "8.\tIn Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, the Court of Final Appeal explained the essential elements of this offence as follows:", "zh-HK": "終審法院在 Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98 一案就本控罪的要素作出以下的詮釋：" }

{ "en": "(1)\tOn a proper construction of section 25(1) of the Ordinance, the prosecution does not have to prove that the property did in fact represent the proceeds of an indictable offence. The actus reus of this offence is the act of dealing with the property. The status of the property merely goes to the mens rea of the offence. (HKSAR v Wong Ping Shui & Another (2001) 4 HKCFAR 29 applied; R v Montila & Others [2005] 1 Cr App R 26 distinguished). (See paras. 96-100)", "zh-HK": "按照《條例》第25(1) 條的恰當詮釋，控方毋須證明有關財產確實為可公訴罪行的得益。此項罪行的「犯罪行為」是處理有關財產。財產的狀況只關乎此項罪行的「犯罪意圖」元素(引用HKSAR v Wong Ping Shui & Another (2001) 4 HKCFAR 29; R v Montila & Others [2005] 1 Cr App R 26 予以區別)。(見第 96 至 100 段)" }

{ "en": "(2)\tIn practice, it is likely that the first limb of section 25(1) － the “knowing” limb － can seldom be relied on to prosecute offenders unless the prosecution can prove that the property did in fact represent a person’s proceeds of an indictable offence. However, that is a different matter from requiring the prosecution to prove in all cases brought under that section that the property did in fact represent a person’s proceeds of an indictable offence. (See para. 106)", "zh-HK": "實際上，除非控方能夠證明有關財產確實為某人從可公訴罪行的得益，否則第 25(1) 條的首部分—–即關乎「知道」的部份—–應不會經常被用以檢控罪犯。但這絕不代表上述條文要求控方在每一宗根據該條文提出的檢控中都要證明有關財產確實為某人從可公訴罪行的得益。(見第 106 段)" }

{ "en": "9.\tSee also HKSAR v Yan Suiling (FACC No. 6 of 2011) (appeal proper) (FAMC 84/2010) (leave to appeal).", "zh-HK": "另見：HKSAR v Yan Suiling (嚴穗陵) (FACC No. 6 of 2011) (正式上訴) (FAMC 84/2010) (上訴許可)。" }

{ "en": "10.\tIn HKSAR v Lai Kam Yee Teresa [2010] 4 HKLRD 157, the Court of Appeal had this to say regarding the mens rea:", "zh-HK": "上訴法庭在香港特別行政區訴賴錦儀 [2010] 4 HKLRD 157 對本罪行的「犯罪意圖」作出以下的裁決：" }

{ "en": "17. …...本案的重點是控罪的「犯罪意圖」。……關於犯罪意圖控方不是指申請人「知道」有關的財產是從可公訴罪行獲得的利益而是說申請人有「合理理由相信」有關的款項是從可公訴的罪行獲得的得益。\t“\t17.\t…...The crux of the matter was the ‘mens rea’ of the charge. …… As for the mens rea, the Prosecution’s case was not that the Applicant ‘knew’ that the property was the proceeds of an indictable offence, but that the Applicant had ‘reasonable grounds to believe’ the property to be the proceeds of an indictable offence.", "zh-HK": "「" }

{ "en": "在決定一名被告人是否有「合理的理由相信」這個概念時法庭須要考慮兩點。第一點是客觀的，即一名具常識、有情理和正當思維的人士(合理人)會否認為有關的情況是足以令人相信有關款項是從可公訴罪行的得益。第二點是主觀的，即被告人是否知道有關情況的存在，致令他相信有關的款項是從可公訴罪行的得益。\t18.\tWhen the court determines whether a defendant has the ‘reasonable grounds to believe’, it has to take into account two factors. The first factor is an objective one, namely whether a reasonable person with common sense and in his right thinking (a reasonable man) will think that the circumstances suffice to cause him to believe that the money is the proceeds of an indictable offence. The second factor is a subjective one, namely whether the defendant knows the existence of those circumstances that will cause him to believe that the money is the proceeds of an indictable offence.", "zh-HK": "18." }

{ "en": "只要控方能夠證實這兩點，法庭便可以裁定被告人是有該控罪的犯罪意圖，控方是無須證明被告人是「確實相信」有關的款項是從可公訴罪行的得益，見HKSAR v Ma Zhujiang [2007] 4 HKLRD 285。法庭以『嚴厲』這形容詞來描述這條法例。」\t19.\tIf the Prosecution can prove the above two factors, the court is entitled to find that the defendant has the requisite mens rea for the charge. The Prosecution does not have to prove that the defendant ‘actually believes’ that the money involved represents the proceeds of an indictable offence. See HKSAR v. Ma Zhujiang [2007] 4 HKLRD 285. The court described the legal provision as ‘harsh’.”", "zh-HK": "19." }

{ "en": "Our views", "zh-HK": "本庭意見" }

{ "en": "11.\tIn the present case, Judge Yiu found that the applicant had “reasonable grounds” to believe that the sums in question represented the proceeds of an indictable offence. We will first deal with the parties’ arguments over the principles involved in this appeal and then consider individual charges.", "zh-HK": "在本案姚法官裁定申請人有「合理理由」相信有關的款項是從可公訴罪行的得益。本庭先處理涉及本上訴原則性的爭議，然後再處理個別控罪。" }

{ "en": "「合理理由相信」\t1)\t“Reasonable grounds to believe”", "zh-HK": "1) " }

{ "en": "12.\tMr Luk SC, appearing with Mr Poon for the applicant, contends that the prosecution evidence only showed that during the relevant period the applicant had some cash and dealt with some money, that there were quite a number of credit and debit entries in several bank accounts under her name, of which some were related to the purchase of real estate by her, and that she did not pay any tax in Hong Kong between 1999 and 2005. Mr Luk submits that the prosecution evidence only served to prove that the applicant had dealt with a lot of money, but there was nothing to prove that the money in question came from or represented the proceeds of an indictable offence, and hence there was no factual basis on which a reasonable man would have believed that the property in question had anything to do with an indictable offence.", "zh-HK": "代表申請人的陸貽信資深大律師及潘展平大律師指控方的證據只是顯示在相關的時段申請人有一些現金，曾經處理一些款項及在幾個個人名義的銀行戶口中有不少的入賬及支賬項目，其中部分與申請人所購入物業有關，及申請人在1999年至2005年沒有在香港交稅。陸大律師指控方的證據只能證明申請人當時處理了很多金錢，但沒有任何證據證明有關的款項是來自或代表公訴罪行所得，以致讓一個合理的人有事實基礎相信被處理的財產與公訴罪行有關。" }

{ "en": "13.\tWith respect, we do not agree with this contention. Hong Kong enjoys a reputable, sound and reliable banking system, but the applicant kept a huge amount of cash inside the safe at home. Moreover, the safe deposit boxes in her cohabitee’s name also stored huge amounts of cash, and the keys to these two boxes were kept inside the safe that could only be opened by her. Despite her claim that she did not trust banks, she owned four different bank accounts, to and from which deposits and withdrawals in large amounts of money were made. By common sense, these are all extremely unusual circumstances.", "zh-HK": "本庭不同意這說法。香港擁有一個良好聲譽、運作健全及可以令人信賴的銀行制度，但申請人卻在家裡的夾萬存放巨額現金。另外，她的同居男友名下的保險箱內亦是存有巨額現金，而這兩個保險箱的鎖匙是放在只有申請人才可以開啟的夾萬內。雖然申請人聲稱她不信任銀行，但同時她卻分別擁有四個銀行戶口及在這些戶口大量存入及提取金錢。從常理來看，這些都是極不尋常的情況。" }

{ "en": "14.\tFrom the “Table explaining the deposits and transfers to and from bank accounts in relation to Charges 2 and 3” in the Defence Exhibit Bundle (1) provided by the applicant, it can be seen that the applicant had also deposited into the banks what she claimed to be earnings from sex services (service money). She also deposited the money which had been kept inside the safe into the bank accounts for investment purposes. She also used the current account to make payments for purchasing a car and taking out vehicle insurance. All these went counter to her defence that she did not keep money in banks for fear that the monthly bank statements mailed to her would be stolen and hence her savings would be disclosed to others, or that she did not like to deposit money in banks. Although the prosecution had not adduced any evidence to prove that the property in question in fact represented a person’s proceeds of an indictable offence, it does not mean that the above evidence was “neutral” and unsupportive of the proposition that the applicant did have the requisite mens rea.", "zh-HK": "從申請人提供辯方證物冊(1)內的「有關第二及第三條控罪銀行戶口存款及轉賬的解釋列表」看到申請人同時是有將她聲稱從性服務所得的費用(服務費)存入銀行。她亦有把夾萬內的款項存入銀行戶口作為投資之用。她亦有使用支票戶口支付購買汽車及汽車保險。這些都是與她聲稱她不存錢在銀行的原因是因為擔心銀行的月結單寄來時信件會被偷取，讓別人知道她有這些積蓄或她不喜歡存錢入銀行的辯解自相矛盾。雖然控方在本案並沒有提供任何證據證明有關財產實確是某人從可公訴罪行的得益，但這不表示上述的證據性質是「中性」及不能支持申請人犯罪意圖之說。" }

{ "en": "15.\tJudge Yiu took into account the following unusual features of the present case:", "zh-HK": "姚法官所考慮的本案不尋常的事項包括以下各點：" }

{ "en": "由 1983 年至 2003 年 20 年間，申請人聲稱單靠從事按摩及提供性服務，竟可儲存現金共 23,000,000 餘元;\t(1)\tThe applicant claimed that, over the 20 years between 1983 and 2003, she managed to save up as much as $23,000,000 odd solely by providing massage and sex services;", "zh-HK": "(1)" }

{ "en": "自 1997 年她已有逾 2 千萬元現金，但她說為了留住客人而繼續從事該些服務;\t(2)\tSince 1997, she had had over $20,000,000 in cash, but she said she had continued to provide those services with a view to retaining customers;", "zh-HK": "(2)" }

{ "en": "雖然她並非完全不使用任何銀行戶口，同時亦有把少量現金作定期存款，但她把大量現金放於家中，在未有夾萬時只放在床下，她不擔心盜竊，卻擔心存放銀行會被偷去月結單信件，因此才不存放於銀行。而在搬屋時，她更只是把千多萬元現金放於手提行李箱中自行搬送；\t(3)\tAlthough it was not the case that she did not use any bank account, and in fact she had kept a small amount of money as time deposit, she did keep a large amount of cash at home, putting it underneath her bed before there was a safe. She did not worry about theft of the money, but instead worried that monthly bank statements would be stolen if she put the money in banks, and this explained why she did not keep the money in banks. When she moved her residence, she just put cash of over 10 million dollars in a suitcase which she carried by herself;", "zh-HK": "(3)" }

{ "en": "她聲稱的內地房地產投資的核心人物是黃靜俊，可是從所有文件中，除了一張據申請人提供黃靜俊的銀行戶口號碼結餘證明外，其他所謂的內地投資，竟完全沒有任何文件證明，而申請人提供的內地房地產文件更指示關乎陳森，而非黃靜俊；\t(4)\tShe claimed that Huang Jingjun was the key person in the Mainland real estate investments. However, apart from one document which showed the number of and balance in Huang Jingjun’s account, none of the documents produced by the applicant constituted evidence of the so-called Mainland investments. Indeed, the Mainland real estate documents supplied by the applicant indicated that Chan Thao instead of Huang Jingjun was involved;", "zh-HK": "(4)" }

{ "en": "她按黃靜俊的指示，讓不知悉的人士存錢到她的戶口，然後再按指示存入不同賬戶內，但她竟然對整個投資規模、黃靜俊的投資多少也全不知悉；\t(5)\tUpon Hung Jingjun’s instructions, she allowed unknown persons to deposit monies into her accounts, which were then transferred to various accounts pursuant to further instructions. In doing so, however, she did not have the faintest idea about the scale of the entire investment scheme and the extent of Huang’s investment;", "zh-HK": "(5)" }

{ "en": "在 2001 年 2 月 22 日，同日有兩次存款到她的其中一個銀行戶口，申請人說這些是她服務費的儲存。然而，其後的客人投資支出竟剛巧是該兩次儲存的總數；\t(6)\tTwo sums of money were deposited into one of her bank accounts on the same day of 22 February 2001, and the applicant said that those were deposits of her service money. However, as it turned out, the customers’ investment expenses were exactly the sum total of those two deposits;", "zh-HK": "(6)" }

{ "en": "她列出的詳盡收支項目，大部份既無客戶名字，亦無數簿紀錄，她何以可憶述這多年來的進支；\t(7)\tOf the credit and debit details listed by her, most did not bear the names of customers, nor were they evidenced by ledger records. It might be queried why she was able to recall the various credits and debits over the many years;", "zh-HK": "(7)" }

{ "en": "有關陳森的生意狀況，申請人提供的文件是很早期的，約1993年左右的文件，較後期或近期的則欠奉。文件中只有租金攤分協議或發票數張，沒有其他生意上的合約或公司會計賬目等文件，難以接納陳森在相關時刻確實仍在經營生意。\t(8)\tIn respect of the status of Chan Thao’s business, the applicant had only provided documents from a very long time ago, namely around 1993, and no subsequent or recent documents were made available to the court. The documents provided merely included an agreement for apportionment of rental and a few invoices, and there were no other documents such as business contracts or accounting records. It would be difficult to accept that Chan Thao was still carrying on business at the material time.", "zh-HK": "(8)" }

{ "en": "16.\tIn our view, these unusual circumstances could have led a reasonable man to think that the sums in question represented the proceeds of an indictable offence. By reason of these unusual circumstances, the court was also entitled to reject the applicant’s defence and go on to find that the applicant believed the sums in question represented the proceeds of an indictable offence.", "zh-HK": "本庭認為這些不尋常的情況是可以讓一名合理的人士認為有關款項是從可公訴罪行的得益。法庭亦可根據這些不尋常的情況拒絕接納申請人的辯解，繼而裁定申請人是相信有關的款項是從可公訴罪行的得益。" }

{ "en": "17.\tThe applicant relies on the cases of Yan Suiling, HKSAR v Tam Hung (CACC 127/2010) and HKSAR v Au Hau Ching (CACC 146/2008). The applicant contends that although the prosecution did not have to prove that the applicant participated in the underlying indictable offence at the time of the money laundering, it was still necessary for the prosecution to adduce evidence that certain serious crime had occurred at that time and that the monies dealt with by the applicant were related to that serious crime.", "zh-HK": "申請人引用 Yan Suiling (嚴穗陵), HKSAR v Tam Hung (譚雄) (CACC 127/2010) 及 HKSAR v Au Hau Ching (區巧貞) (CACC 146/2008)。申請人指雖然控方無須證明申請人「洗黑錢」時曾參與有關的可公訴罪行，但控方仍須提出證據當時發生過某種嚴重罪行，而申請人所處理的款項涉及該種嚴重罪行。" }

{ "en": "18.\tWith respect, we do not agree. The Court of Final Appeal pointed out in Wong Ping Shui that the criminal offences that generated “black money” were often carried out in secrecy at one or more places, therefore it would be implausible that the legislature would have intended to require the prosecution to produce proof of the underlying criminal offences that generated the “black money”. In our view, this principle is also applicable to the issues raised by the defence in the present case. We do not agree that the prosecution has to produce evidence on whether the “black money” in question involved a “certain form” or “certain kind” of serious crime. The court is required to consider all the facts of the particular case, including, inter alia: the defendant’s occupation, income and assets; the amount of the property in question and the form in which such property was held; how the defendant dealt with the property; the credibility of the explanations put forward by the defendant in respect of his/her ownership of such property, and whether there is any evidence in the case to support such explanations. The issue of mens rea is to be dealt with and determined on the basis of the facts specific to each particular case. It is true that, in the cases cited by the defence, there was evidence showing the existence of serious crimes, and that such evidence might be used to corroborate the “money laundering” charge against the defendants. Nevertheless, even if there is no such supporting evidence, it does not mean that the prosecution can never discharge the onus of proving that the defendant had the requisite mens rea. The present case is a typical example.", "zh-HK": "本庭不同意申請人的立場。終審法院在 Wong Ping Shui 一案指出產生「黑錢」的刑事罪行往往是以秘密形式及在一處或多處地方進行，故此《條例》的立法原意是不會要求控方就產生這些「黑錢」的根本刑事罪行提出舉證。本庭認為這原則亦適用於現辯方所提出的爭議，本庭不同意控方需要提出有關的「黑錢」是否涉及「某種」或「某類」嚴重罪行的舉證。法庭是需要考慮整體案情，這包括被告人的職業、收入及資產，以及有關財產的數額和以甚麼形式持有、被告人處理財產的方法及被告人就擁有這些財產所作出辯解的可信性及和案中有沒有證據支持這些辯解等。法庭在處理被告人的犯罪意圖時是需要按照每一件案件的獨特案情作出裁決。在辯方引述的案例內雖然是有證據顯示嚴重罪行的存在，而這些嚴重罪行的證據可能是用作支持被告人「洗黑錢」控罪的佐證，但就算沒有這些佐證也不表示控方必然不能履行證明被告人具有犯罪意圖的舉證責任。本案是一個典型的例子。" }

{ "en": "19.\tMr Luk submits that even if the applicant’s explanations on the monies in question were not accepted, the court was still required to consider if the monies were “black money”. In our view, it is extremely unusual for the applicant and her boyfriend to keep, as they did, such huge amounts of cash inside the safe at home and the safe deposit boxes respectively. Had these monies been obtained from normal commercial transactions, then we see no reasonable grounds for the need to keep them in the form of cash, especially in light of the fact that at the same time the applicant also owned and operated a number of bank accounts. This being the case, it was open to the court to infer that the applicant did have the relevant mens rea, namely the belief that the monies were “black money”.", "zh-HK": "陸大律師指就算申請人對這些款項的辯解不被接納，法庭仍須考慮有關的金錢是否是「黑錢」。本庭認為申請人在家裡的夾萬及她男朋友在其保險箱內存放如此巨額的現金是一項極不尋常的行為。若果這些金錢是從正常商業交易取得的，本庭看不到有任何合理理由需要以現金形式存放，特別是申請人同時亦有多個銀行戶口及有運用這些銀行戶口。在這情況下，法庭是可以推論申請人是具有相關的犯罪意圖相信這些錢財是「黑錢」。" }

{ "en": "20.\tMr Luk further submits that, on the facts, the monies in the name of and owned by the applicant probably came from Chan Thao, and the applicant had in fact adduced evidence that Chan Thao was engaged in legitimate business such as fashions and wine. This submission does not, in our view, assist the applicant. It was not the applicant’s defence that the monies in question came from Chan Thao; she insisted that she had earned the monies from sex service and real estate investments. In any event, if Chan Thao was indeed engaged in legitimate business, there was no evidence to explain why huge sums of cash were kept in his safe deposit boxes.", "zh-HK": "陸大律師更指根據本案的案情，其實申請人名下及擁有的金錢應該是來自陳森，而申請人亦有提供證據證明陳森從事時裝及洋酒等正當生意。本庭不認為這論點可以協助申請人。申請人的答辯理由並不是有關金錢是來自陳森，她堅持她是以性服務及投資地產賺取這些金錢。無論如何，若果陳森真是從事正當生意，沒有任何證據解釋為何他的保險箱內會存放巨額現鈔。" }

{ "en": "2)\tThe judge improperly rejected the defence evidence", "zh-HK": "2) 法官不當地拒絕接納辯方的證據" }

{ "en": "21.\tJudge Yiu refused to accept the applicant’s claim that by providing sex service she had earned and saved up such large amounts of cash and also her explanations as to why she did not put the money into banks. He also rejected the applicant’s allegation that she had engaged in Mainland real estate investments. In our view, these are findings of facts. The Judge has in his written judgment explained the reasons for his verdict. We do not think he misunderstood the fundamental principle that the prosecution bears the burden of proof or failed to consider the possibility of the applicant’s explanations being true.", "zh-HK": "姚法官拒絕接納申請人聲稱她是以提供性服務賺取及儲存這些大量現金及她解釋不放入銀行的原因。姚法官亦拒絕接納申請人聲稱從事內地房地產的投資之說。本庭認為這些都是有關事實的裁決。姚法官已在判案書上詳細說明他裁決的原因。本庭不認為他混淆了控方需要負上舉證責任的基本原則及他忽略考慮申請人的辯解是否可能是真的。" }

{ "en": "Individual charges", "zh-HK": "個別控罪" }

{ "en": "Charge 1", "zh-HK": "第一項控罪" }

{ "en": "22.\tWe have dealt with the mens rea of this charge in the discussion above. The remaining issue is whether or not the applicant dealt with the money kept in the safe deposit boxes under Chan Thao’s name. In respect of the issue of “dealing with”, Judge Yiu made the following findings:", "zh-HK": "本庭已經在上述討論處理這項控罪的犯罪意圖。剩下的爭議點是申請人是否有處理陳森名下保險箱內存放的金錢。姚法官就「處理」一事作出以下的裁決：" }

{ "en": "此外，按《有組織及嚴重罪行條例》第455章第2條，有關「處理」的定義其實相當廣泛，這除包括(a)收受或取得該財產外，亦包括(b)隱藏或掩飾該財產(不論是隱藏或掩飾該財產的性質、來源、所在位置等等)。顯然，替別人收藏保險箱的鎖匙正是協助別人掩飾或隱藏該些財產的所在位置，若非經搜查令得以開啟，別人根本無法知道這些鎖匙可開放甚麼地方，更難以推測原來是用以開啟別人的保險箱等等。」\t“\t39.\tMoreover, under section 2 of the Organized and Serious Crimes Ordinance (Cap.455), the term ‘dealing’ is given a wide-ranging definition which includes not only (a) receiving or acquiring the property, but also (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, etc.). Obviously, to hide the keys to safe deposit boxes for others was precisely to assist them in disguising or concealing the location of the property. Had the boxes not been opened pursuant to the search warrant, others would not possibly have known what those keys were for, still less inferred that the keys were for opening safe deposit boxes belonging to someone else, and so on.”", "zh-HK": "「39．" }

{ "en": "23.\tWe agree with Judge Yiu’s findings. We agree that the applicant could not possibly have been ignorant of the fact that two keys to the safe deposit boxes in Chan Thao’s name were inside the safe. The applicant was obviously keeping the keys to the safe deposit boxes for Chan Thao. In light of the fact that they had been cohabiting for years and had a daughter, that they often went in and out of Hong Kong together, and that a large amount of cash was kept inside applicant’s safe, there is no doubt that the applicant was keeping the two keys to the safe deposit boxes for Chan Thao, and that she in fact knew that there were large amounts of cash inside his deposit boxes.", "zh-HK": "本庭同意姚法官的裁決。本庭同意申請人是沒有可能不知道夾萬內有兩條屬於陳森名下保險箱的鎖匙，顯然申請人正是替陳森保管他保險箱的鎖匙。根據他們雙方多年的同居關係，並育有一女兒，並且經常共同出入境，而申請人夾萬內亦已存放大量現金，毫無疑問，申請人替陳森保管兩條保險箱鎖匙，申請人根本亦是知道陳森的保險箱內有那些大量的現金。" }

{ "en": "Charges 2 to 5", "zh-HK": "第二至第五項控罪" }

{ "en": "24.\tJudge Yiu found as follows:", "zh-HK": "姚法官裁決如下：" }

{ "en": "至於第二至第五項控罪均是在被告不同的銀行戶口中，只有她是簽名授權人，被發現有大量現金及其他的提存項目，無疑被告確實是處理上述的據法權產。就第二及第三項控罪而言，所處理的款項分別高達80,000,000餘元及17,000,000餘元，各提存款項均達40,000,000餘元及8,000,000餘元等，被告容許、容讓不同人士使用其銀行戶口作出大量現金及其他款項的存放，被告更接連把這些款項轉賬或提出，按她所述，部分人士她更完全不認識。在此情況下，客觀而言，合理的人均會認為是有合理理由使人相信這些款項的全部或部分、直接或間接是代表是從可公訴罪行的得益。主觀而言，被告自己亦顯然有合理理由相信此情況。順帶一提，被告各項物業買賣的情況，顯然亦是用以掩飾這些財產的真正來源及情況。」\t“\t45.\tCharges 2 to 5 all involve large amounts of cash and other deposit and withdrawal entries having been discovered from the defendant’s various bank accounts, of which the defendant was the sole signatory. Undoubtedly, the defendant did deal with the abovementioned choses in action. In respect of Charges 2 and 3, the monies dealt with amounted to as much as $80,000,000 odd and $17,000,000 odd respectively, and the deposits and withdrawals totalled $40,000,000 odd and $8,000,000 odd respectively. The defendant had allowed and permitted different people to use her bank accounts for keeping large amounts of cash and other monies, and then she had successively transferred or withdrawn these monies. And according to her, some of those who used her accounts were complete strangers to her. This being the case, objectively speaking, a reasonable man would think that there were reasonable grounds which led a person to believe that all or some of the monies directly or indirectly represented proceeds of an indictable offence. Subjectively speaking, the defendant herself obviously had reasonable grounds to hold such a belief. Incidentally, the purchase of various real properties by the defendant was obviously made for the purpose of disguising the real source and status of the property in question.”", "zh-HK": "「45．" }

{ "en": "25.\tWe agree with Judge Yiu’s findings.", "zh-HK": "本庭同意姚法官的裁決。" }

{ "en": "Charges 4 and 5", "zh-HK": "第四至第五項控罪" }

{ "en": "26.\tJudge Yiu made the following findings in respect of Charges 4 and 5:", "zh-HK": "姚法官就第四及第五項控罪作出以下裁決。" }

{ "en": "第四及第五項控罪，在金額上，表面上與第二及第三項控罪有所差距，第四項牽涉港幣750,000元，第五項為人民幣349,900元。首先，同樣地，這些戶口是被告個人的戶口，她顯然是處理這些據法權產。在案情中，被告均分別指出，是從夾萬中及櫃桶中取出金錢以作存放。首先，她的夾萬中除港幣外，亦有發現人民幣，顯然她指存入的300，000元人民幣。本席亦認為按她所說，既然亦已從1995年起儲存至2004年存入，這些大量的人民幣必然亦是從夾萬中所提取，毫無疑問，相關第四及五項的金錢根本就是夾萬款項中的一部分。同樣地，客觀而言，合理的人亦必然有合理理由相信上述款項的全部或部分、直接或間接是從可公訴罪行的得益。主觀而言，被告亦必然有合理理由相信這些情況的存在。\t“46.\tCharges 4 and 5 involve HK$750,000 and RMB¥349,900 respectively – amounts which appear to be considerably lower than those involved in Charges 2 and 3. First of all, these accounts were also the defendant’s personal accounts and she had obviously dealt with the choses in action. It is the defendant’s case that monies had been taken out from the safe and drawer respectively and deposited into the accounts. First, in her safe, cash denominated in both Hong Kong currency and Renminbi was found, and she was clearly referring to the RMB¥300,000 deposited. I also take the view that, based on what she said, given that it had been kept since 1995 until 2004 when it was deposited into the account, such a large amount of Renminbi must also have been taken out from the safe, and undoubtedly, the sums involved in Charges 4 and 5 were in fact part of the cash in the safe. By the same token, objectively speaking, a reasonable man would definitely have had reasonable grounds to believe that all or some of those monies directly or indirectly represented the proceeds of an indictable offence. Subjectively, the defendant also definitely had reasonable grounds to hold such a belief.", "zh-HK": "「46．" }

{ "en": "就第五項控罪而言，即使接納被告的人民幣真是與其姊姊兌換而來，但被告所兌換出去的金額本身的來源根本亦是從夾萬而來，顯然從客觀及主觀而言，合理的人及被告自己均有合理理由相信上述款項的全部或部分、直接或間接代表任何人從可公訴罪行的得益，而被告仍處理上述款項。」\t47.\tIn respect of Charge 5, even if the defendant’s allegation that she had obtained the Renminbi by making exchange with her sister was accepted, the money which funded the exchange came from the safe. Obviously, both objectively and subjectively speaking, a reasonable man and the defendant herself would have reasonable grounds to believe that all or some of the above monies directly or indirectly represented the proceeds of an indictable offence, and the defendant still dealt with those monies.”", "zh-HK": "47．" }

{ "en": "27.\tOn the applicant’s own evidence, the monies involved in these two charges came from the money kept by her in the safe or on her person, and therefore Judge Yiu’s findings are eminently justified.", "zh-HK": "根據申請人的證供，這兩項控罪所涉及的金錢均來自申請人放在夾萬或身上的現金，故此姚法官的裁決是有充分證據支持的。" }

{ "en": "Conclusion", "zh-HK": "總結" }

{ "en": "28.\tWe do not agree that there is any lurking doubt in the present case. For the above reasons, we consider the convictions safe and satisfactory. The appeal is dismissed.", "zh-HK": "本庭不同意案件存有任何潛伏疑點。基於上述理由，本庭認為定罪是安全及穩妥的。本庭駁回申請。" }

{ "en": "由律政司高級檢控官林穎茜代表。\tMs Vinci Lam, Senior Public Prosecutor of the Department of Justice, for the Respondent", "zh-HK": "答辯人：" }

{ "en": "由冼國雄, 蘇福禎律師行轉聘陸貽信資深大律師及潘展平大律師代表。\tMr Arthur Luk, SC and Mr Jackson Poon, instructed by Messrs Sin William & So, for the Applicant", "zh-HK": "申請人：" }